The South Australian case of Brine v Carter  SASC
205 is a warning to executors who wish to claim the deceased's
superannuation for themselves.
The 2014 decision in McIntosh v McIntosh examined the
conflict of an administrator in claiming superannuation benefits
for herself (as opposed to requesting the proceeds be paid into the
estate). Brine v Carter considered whether the same
conflict arises with an executor.
In Brine v Carter, Professor Brine died with two
superannuation accounts with UniSuper. He appointed his three
children and his de facto partner Ms Carter as his executors. Ms
Carter applied for the death benefit to be paid to her. The other
executors sought an order requiring (among other things) that Ms
Carter account to the estate for the superannuation benefit she
received, due to the conflict of interest caused by her being an
executor of Professor Brine's estate.
Justice Blue found:
Ms Carter as the executor was in a position of conflict in
relation to Professor Brine's superannuation benefits;
the mere fact she was appointed as an executor did not by
itself mean she was authorised to act in that position of conflict
in relation to the superannuation benefits;
as the other executors acted on behalf of the estate in
claiming the superannuation benefits from UniSuper, they consented
to her claiming the death benefit despite the conflict; and
Ms Carter was not liable to account to the estate for the
This case is in some ways consistent with, and in some ways
expands, the decision in McIntosh. Advisers should
consider the following points from Brine v Carter:
Merely being appointed as an executor is not enough to absolve
a person from a conflict in claiming the superannuation for
themselves (as opposed to claiming it for the estate).
If a person wants their executor to receive their
superannuation, they should include an express provision the Will
confirming the person can claim the superannuation despite being in
a position of conflict.
If a person who wishes to claim the superannuation is appointed
as executor and there is no provision authorising them to do so
they should consider renouncing their appointment as executor.
If an executor wishes to claim the deceased's
superannuation benefits and there is no clause in the Will
authorising this, they should preferably get the consent of the
other executors or, at a minimum, ensure the other executors are
informed about the superannuation arrangements and are given the
opportunity to claim the superannuation for the estate.
The law about the extent to which an executor or administrator
has a conflict and can claim superannuation benefits for themselves
is developing. There is still some doubt about the extent to which
the 'conflict restrictions' apply to an executor. Also,
there is not yet any authority about whether a conflict of interest
arises where a person has the third role of decision maker in the
fund, or where there are documents in place directing benefit
payments that are intended to be binding but are in fact not.
Advisers must ensure clients' arrangements are structured so
executors and administrators are not unintentionally prevented from
claiming superannuation. There are a variety of steps advisers can
take to ensure benefits are paid to intended recipients despite
conflicts that may occur.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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